Commentary

Pakistan’s draft counterterrorism law threatens basic rights and freedoms in violation of Pakistan’s international legal obligations. The Protection of Pakistan Ordinance, 2013, which was approved by President Mamnoon Hussain on October 20, 2013 and the National Assembly on April 7, 2014, requires Senate approval by April 20 or it will expire.

“Pakistan’s anti-terror laws shouldn’t be used to undermine fundamental rights,” said Brad Adams, Asia director at Human Rights Watch. “The Protection of Pakistan Ordinance as drafted runs roughshod over rights provided under international law as well as Pakistan’s constitution.”

The proposed law violates fundamental rights to freedom of speech, privacy and peaceful assembly, and due process protections embodied in the International Covenant on Civil and Political Rights (ICCPR), which Pakistan ratified in 2010. In its current form, the law could be used to suppress peaceful political opposition and criticism of government policy, Human Rights Watch said.

Pakistan’s Senate should refuse to approve the repressive law and return it to the National Assembly with needed revisions, Human Rights Watch said.

The preamble to the ordinance describes the law as necessary “for protection against waging of war against Pakistan and the prevention of acts threatening [its] security” so as to expedite the investigation and prosecution of terrorism cases.

The draft counterterrorism law contains vague and overly broad definitions that could be used to prosecute peaceful political protesters and those who criticize government policies, Human Rights Watch said. Among the ordinance’s most worrying provisions are:

The vague definition of terrorist acts, which could be used to prosecute a very wide range of conduct—far beyond the limits of what can reasonably be considered terrorist activity. Besides “killing, kidnapping, extortion,” the law classifies highly ambiguous acts including “Internet offenses” and “disrupting mass transport systems,” as prosecutable crimes without providing specific definitions for such offenses. These terms are so ambiguous that a nonviolent political protest that disrupts traffic might be labeled “threatening the security of Pakistan.” As the United Nations Special Rapporteur on Human Rights and Counterterrorism has recommended, the legal definition of terrorism should be limited to acts “committed against members of the general population, or segments of it, with the intention of causing death or serious bodily injury, or the taking of hostages,” rather than property crimes.
The expansion of powers of arrest without warrant from the police to members of the armed forces or “civil armed forces acting in aid of civil authority.” The ordinance empowers those forces to “enter and search without warrant any premises to make any arrest or to take possession of any property … used or likely to be used in the commission of any scheduled offence.” Providing such powers without warrant violates the rights against arbitrary arrest under article 9, and to privacy and the security of the home under article 17 of the ICCPR.
Shifting the “burden of proof” from government prosecutors to criminal suspects. The ordinance states that those arrested under the law “shall be presumed to be engaged in waging war or insurrection against Pakistan unless he establishes his non-involvement in the offence.” This violates the fundamental principle of presumption of innocence embedded in article 14 of the ICCPR, which ensures “the right to be presumed innocent until proved guilty according to law.”
Providing effective immunity for abuses committed by security forces and judicial officials acting under the law, protecting them from any liability “for acts done in good faith during the performance of their duties.” This blanket immunity violates article 2(3) of the ICCPR, which requires that governments ensure that any person whose rights or freedoms are violated “shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”
Empowering the government to determine the place of custody, inquiry, investigation and trial. This could permit detentions and prosecutions being conducted outside the established judicial system in violation of basic protections against arbitrary detention under article 9 of the ICCPR and the right to “a fair and public hearing” under article 14.

Terrorism is a very real concern in Pakistan. Sunni militant groups have conducted numerous attacks targeting civilians. In 2013, more than 400 members of the Shia Muslim population were killed in targeted attacks that took place across Pakistan. On April 9, 2014, a truck bomb detonated at an outdoor market on the outskirts of the national capital, Islamabad, which killed at least 22 people. A self-described separatist group calling itself the United Baloch Army claimed responsibility for the attack.

“Denying Pakistanis their universal rights and freedoms isn’t a smart or effective tool for battling terrorism,” Adams said. “The government should step back and fully revise the Protection of Pakistan Ordinance with input from civil society and international experts to instead craft a law that addresses serious crimes while protecting rights.”

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